Schoolcraft v. The City Of New York et al

Filing 478

LETTER addressed to Judge Robert W. Sweet from Alan Scheiner dated August 17, 2015 re: Opposition to Plaintiff's August 13th Request to Modify the JPTO Filing Deadline. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Isak Isakov, Jamaica Hospital Medical Center, Jamaica Hospital Medical Center Employee's "John Doe" # 1-50, Jamaica Hospital Medical Center Employee's "John Doe" #1-50, Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Steven Mauriello(Tax Id. 895117 in his official capacity), Steven Mauriello(Tax Id. 895117, Individually), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York. (Attachments: # 1 Exhibit A)(Shammas, Cheryl)

Yonr
DBPNNTMENT

THe Grw oF NEW

ZACHARY \ry. CARTBR
Corporalion Counsel

L¡.w

IOO CHURCH STREET
NEW YORK, NY IOOOT

ALAN SCHEINER
Senior Counsel
phone; [phone]
fax: (2 I 2) 356-3509
[e-mail]. gov

August 17,2015

BY ECF & EMAIL (Andrei [e-mail])
Honorable Robert W, Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

Re: Schooluaft v. The City of New York, et al,,l0-CY-6005 (RV/S)
Your Honor:
am a Senior Counsel in the offrce of Zachary W. Carter, Corporation Counsel of the
City of New York, assigned to represent the City defendants in the above-referenced action. On
August 13,2014, plaintiff frled an application to modify the deadline for submission of the JPTO
from August 14th to August 2lst. I write to respectfully request that the Court (a) deny
plaintiff s application; and (b) ooso order" the JPTO that was submitted on August 14,2015 and
deem plaintiffls objections as waived and defendants' exhibits admitted at trial; or (c) in the
alternative, should the extension be granted, extend all other deadlines in this action to avoid
prejudice to the City defendants as follows: extension of the motions in limine due date to
September 17 and the motions in limine opposition date to Octciber 9,2015. All defendants join
in requesting this relief, except for defendant Mauriello who joins only in part (c) of the request.

I

A. Plaintiffls

Request

for an Extension is Dilatory and Stems Solely from Lack of

Readiness

In April 2015, plaintiff represented to the Court and the parties that his JPTO and other
court fîlings were ready for exchange and no further extensions in this case should be granted.
See Letter from Nathaniel Smith to the Court, 41712015, Document No, 430 (stating "[e]xhibit
list, witness list, proposed voir dire, jury instructions, and a jury verdict sheet are drafted and
ready to be exchanged with defendants" and opposing defendants' request for an extension of
time on grounds of "further delay" of trial and insisting that the Court should be "prepared to
proceed to trial . . . without entertaining any further requests for delay").

Hon. Robert W. Sweet
August 17,2015
Page2 of 5
In July, plaintiff reiterated his opposition to any further extension of the JPTO deadline in
an email to the parties, stating: "All, Kicking out the date for replies on the reconsideration
motions is fine with the plaintiff but we also do not want to move the other dates, including the
JPTO dates. Nat", (Email from Mr. Smith to all parties dated 711512015, Document No, 46,
annexed as Exhibit A).

Notwithstanding these representations, plaintiff has not only agreed to several
adjournments of the deadlines associated for the draft and final JPTO, but has requested and
taken more time to complete it than defendants. Plaintiff was the last party to circulate his
proposed draft JPTO, and when exchanged it was far from complete: it had missing or
incomplete sections required by Your Honoros Individual Practices, inaccurate exhibit
numbéring, improper formatting, and inadequately identified exhibits,

I

Notwithstanding these representations, plaintiff s lack of readiness was evidenced two
weeks ago, when plainãff pusheá for a JPTO dêadline of August, 18th instead of August l4th, as
all defendants proposed. Plaintiff agreed to the August l4'n date and submitted a joint
application to tùe bourt for an extension of time @oCket No. 472),2 A day later, plaintiff
demanded from defendants an additional week to complete the JPTO, to August 21. The City
defendants did not agree, stating that they would be prejudiced due to the compression of the
time between the JPTO submission and the later deadline for motions in limine and the
impending trial date of October 19,2015. Rather than participating in the completion of the
JPTO, plaintiff applied for an extension of the deadline and did no further work on the JPTO
until August 14,2015.
Notably, plaintiff has a team of approximately seven attorneys to assist in prosecuting his
case. As such, there is no shortage of hands to complete ordinary pre-trialprocedures such as the
JPTO, scheduled long ago and already extended on several occasions. Nevertheless, despite
prior representations of readiness and accusations of inexcusable delay leveled against the
defendants, plaintiff now seeks an extension of the JPTO deadline without consent, and without
any protections for the defendants against the resulting prejudice.
I

See Exhibit A (Email of AugusI 5,2015 With Attached Draft JPTO), Among other omissions,
plaintiffs exhibit list contained no bates numbers, in some cases contained only the vaguest

descriptions of the exhibits or very large composite exhibits. In other instances plaintiff referred
to exhibits by plaintiff s deposition exhibit number, although plaintiff had refused prior requests
to provide copies of his deposition exhibits, and ignored additional requests to do so after the
draft JPTOs were exchanged. Plaintiff failed to respond to additional requests for further
information after issuing the draft. The defendants reserve all rights and remedies as to
plaintiff s inadequately identified exhibits, and will move in limine to exclude the improperly
identified exhibits.

'

In light of the Court's approval of prior adjournment requests, the parties treated the agreed-

upon schedule submitted to the Court as their working schedule, although the Court had not yet
so-ordered the application.

Hon. Robert W. Sweet
August 17,2015
Page 3

B. The Recently-Circulated

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Documents Had No Impact Plaintiffls Abil¡ty to Timely

File the JPTO

Plaintiff argues that more time is required so that he can review documents recently
produced by the C1ty, in connection with thé JPTO process.3 However, under Your Honor's
Individual Rules of Practice, plaintiff was only required to note whether or not he had any
objections to the exhibits, and if so whether he objected on grounds of authenticity. In its draft
JPTO of August 5, 2015, the City defendants listed approximately 14 items not previously
produced to plaintiff, and those documents were provided on August 11,2015. The City
defendants' exhibit list contained in total only 99 exhibits - as compared to plaintiffls list which
extends to exhibit number 431 (not sequentially numbered). Nothing prevented plaintiff from
reviewing the City defendants' exhibit list and noting his objections. If plaintiff required further
information about any exhibits, he did not ask for it, despite encouragement to ask such
questions,

The majority of the exhibits about which plaintiff complains contained no information
new to plaintiff or which was not publicly available. For example, some were items publicly
available on the internet (Exhibits O-l and H-l); photos of a rifle he possessed and secreted in
his apartment on October 31,2009 (Exhibits O-2);and a copy of a complaint in a lawsuit filed
by his father (Exhibit L-l). Exhibits N-3 to N9, and N-l I are NYPD Patrol Guide sections that
are publicly av ailable.a

To the extent that any of the exchanged material presented difficulties for plaintiff, he
could have asked to reserve rights with respect to those items and proceeded with the rest,
Indeed, that is how the defendants addressed the dozens of items that were insufficiently
identified by plaintiff in his draft exhibits list (including one exhibit identified only as "roll call
recordings"). Instead, plaintiff never indicated whether plaintiff had any specific objections to
any of the City defendants' exhibits, or any of Mauriello's exhibits.'
Defendants worked diligently on the proposed JPTO in order to meet the Court-ordered
deadline of August l4th and submitted a joint JPTO by that date. Plaintiff received drafts of
3

All of the new material provided to plaintiff was disclosed in detail on the City

defendants'

draft exhibit list of August 5, 2015.
a

The other exhibits exchanged by the City defendants were N-10, K-3 (produced in Floyd
City), G3, and L-4.
5

v.

For that same reason, plaintiffs argument that more time was required in order to put forth
rebuttal evidence fails because he was required only to identify exhibits for his case in chief, and
in any event could have reserved that issue to supplement the JPTO as needed. Moreover, the
addition of witnesses after the exchange of first drafts of the JPTO is irrelevant, as the parties are
not required to list objections to witnesses or otherwise respond to them,

Hon. Robert W. Sweet
August 17,2015
Page 4 of 5
defendants' objections and other changes prior to the deadline, but plaintiff failed, after August
11, 2015, until the eleventh hour on August 14, 2015, to even purport to participate in the joint
effort. Accordingl y, any objections plaintiff may have as to the exhibits listed in the JPTO that
he did not note during the JPTO process should be deemed waived and the exhibits admitted at
trial.

C. Prejudice to Defendants
Defendants would be substantially prejudiced by any further extension of the JPTO
deadline beyond the agreed-upon schedule that plaintiff submitted to the Court on August 10,
2(l5.6 The parties' motions in limine necessarily depend, at least in part, on the contents of the
JPTO. For that reason, since May 2015 the pre-trial schedule has always included at least three
weeks between the JPTO due date and the motion in limine date. ,See Docket No, 437,
Plaintifls request, if granted, would push the final JPTO submission to a date only two weeks
from the due date for motions in limine that the parties had last requested on consent to be
September 7,2015 (assuming a JPTO due date of August l4).
s adjournment - without any concomitant adjournment of the motion schedule the defendants with only two weeks to complete motions in limine after the JPTO is
would leave
completed. Due to previously scheduled family vacations in the last week of August for two of
the City defendants' counsel that time is effectively only one week. Moreover, an extension of
the JPTO and motion schedule would still result in prejudice, since both would be closer to the
trial date of October 19,2015, complicating trial preparation

Plaintiff

Conclusion
Accordingly, for the foregoing reasons, the City defendants jointly request that the Court
(a) deny plaintiff s application for an extension of time; and (b) "so order" the JPTO that was
submitted on August 14,2015 and deem plaintiff s objections to exhibits to be waived to the
extend not noted for the purposes of the JPTO; and (c) in the event that the Court does grant
plaintiffls application for an extension, defendants respectfully request that at all other deadlines
in this action be concomitantly extended as follows:

o
.

Motions in Limine to be due September l7
Oppositions to Motions in Limine due October 9 (no replies to be filed)7

6

This is not the first time plaintiff has flouted a court-ordered deadline, Pending before this
Court is a motion to strike plaintiffs reply brief in further support of his motion for
reconsideration, which plaintiff filed after the due date.
7

The extension is from the prior dates agreed to and stated in plaintiffs letter of August 10,
2015, Docket No. 472. Four additional business days are added to the 7 day extension due to the
intervening holiday of Labor Day (September 7), and the Jewish high holy days of Rosh
Hashanah and Yom Kippur (September 13, l5 and 23, and the evenings prior).

Hon. Robert W. Sweet
August 17,2015
Page 5

We thank the Court for its consideration of this matter

Respectfully submitted,

/s/Alan Scheiner
Alan Scheiner
Cheryl Shammas
Senior Counsel

Cc.:

All parties (via email

and ECF)

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